A momentous week

The Supreme Court handed down three monumental decisions this week: on the ACA, on discrimination and on gay marriage. This post deals with the two I've read, on the ACA and same-sex marriage. Common to both is the holistic interpretation taken by the Court, rather than nitpicky, language parsing, strict constructionist interpretations we've seen in the past.

The ACA

Four things in the Court's ruling seem noteworthy. First it wasn't the usual 5-4
decision, and since one might have expected 4-5 that's two who "switched sides".

Second, it puts to rest for the moment the question of health care - though not doubt those opposed to the bill on principle (that principle seeming to have been being that it was proposed by a black man) will continue their attempts to deny access to health care to tens of millions of people.

Third, it allows centrist Republican presidential candidates to avoid the question of what they'd replace it with if it were to be repealed. This is a tough question since ACA is not universal health care (that "socialist cancer on society" if Fox is top be believed (which, of course, it should not) ) but a tweak to the existing insurance system, one originally proposed by a moderate Republican. While providing greater access though risk pooling, it does nothing to reduce the outrageous cost of health care in the US. Inadvertently, Obama pulled a 'Tony Blair'; taking a centre right position, making it impossible for the center right to respond without moving still further to the right (which they duly did).


Fourth, it lets law-makers off the hook for drafting poor legislation. This is a problem since it paves the way for more longer convoluted bills that pander to special interests by absolving them from the very basic responsibility of drafting  commonsensical, coherent legislation. In turn that helps lobbyists since law-makers will spend even less time carefully reading the bills they sponsor and vote on; and that's bad for representative democracy.
     
Gay Marriage

Justice Kennedy, writing for the majority noted that the institution of marriage has changes over the years: "These new insights have strengthened, not weakened, the institution of marriage". That seems a stretch' suffice it to day I think that marriage has endured as an institution despite a changing social climate; first the individuals wanting to marry, rather than their parents, were given the right to make that decisions for themselves, and as women's second class status was gradually replaced by more equal treatment so the was forced to adapt accordingly.

What is curious in the matters is why marriage should have been a state matter in the first place, given the widespread understanding on both sides that it is an almost universal and long standing human institution.

In arguing that marriage is necessary to create a stable environment in which a child can grow up and then noting that children are only the result of sexual relations between a man and a woman, the dissenters completely ignore adoption and in-vitro fertilization, to means by which same sex couples can have children. Unless they are advocating a ban on gay adoption, then by this argument they should support gay marriage.

But the dissenters say they are not arguing on the societal merits of the  case but more narrowly on whether it is the Courts role or the States' to make the determination of what marriage should be. To the extent that marriage confers advantages, any state law that restricts access to those advantages to one group or another must be considered unconstitutional under the 14th Amendment guaranteeing equal protection under the law, as the majority suggest. The argument that the Framers did not specifically address the question of marriage and left the "whole subject of the domestic relations of husband and wife to the States doesn't mean that the Court can't ensure that rights are not being trampled on by the States, just as it did in its civil rights decisions.

The dissenters' next argument is risible; they turn to the dictionary definition from 1828! I'm sure there are quite a few words whose meaning has changed since then; and a dictionary is simply a reflection of widely understood meanings at the time, something that takes from the culture and times, not dictating it.

Justice Scalia, joining with the dissenters, but writing a separate opinion, lamented, melodramatically, the threat to democracy, of the Courts intervention. He notes that "when the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted
the constitutionality of doing so". But the same was true of slavery and racial discrimination; and that's something that the Course has (rightly) weighed in on. And where was this anti-activist sentiment when he ruled on Citizens United, changing in profound ways the entire democratic political process.

He is also wrong that: "judges are selected precisely for their skill as lawyers". There are other criteria involved in their selection (and ratification); most people seem to think that political views matter too. If not, there wouldn't be such a party-political bun-fight over the Justices' nominations.

Scalia's opinion is notable for it's "Mr Angry" tone, not the measured legal prose: "The opinion is couched in a style that is as pretentious as its content is egotistic" or sentences starting "Really?", "Huh?" and "What say?" (Page 8). And then, without a trace of irony, he finishes his rant with: "The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis".

It's probably not the last we'll here of either issue, but it seem to be two steps in the right direction.